For
USA, Plaintiff: William J Roach, LEAD ATTORNEY, United States
Department of Justice (ED-WI), Office of the U.S. Attorney,
Green Bay, WI.

Page 1064

DECISION
GRANTING IN PART AND DENYING IN PART MOTION TO
SUPPRESS

William
C. Griesbach, Chief United States District Judge.

Defendant
Ashley E. Kitchenakow is charged in an indictment with
involuntary manslaughter in causing the death of an
individual whose initials are S.A. while driving a motor
vehicle under the influence of an intoxicant on the Menominee
Indian Reservation in violation of 18 U.S.C. § §
1112 and 1153. In a second count, Kitchenakow is charged with
assault resulting in serious bodily injury to a person whose
initials are J.R., arising out of the same occurrence in
violation of 18 U.S.C. § § 113(a)(6) and 1153. The
first count carries

Page 1065

a maximum sentence of eight years in prison, while the second
count, curiously, carries up to ten years. The case is before
the Court on the defendant's motion to suppress evidence
allegedly obtained as a result of an illegal arrest of the
defendant in violation of the Fourth Amendment and the
violation of her Fifth Amendment right against compelled
self-incrimination. For the reasons set forth below, the
motion will be denied in part and granted in part.

I.
THE ARREST OF THE DEFENDANT WAS
LAWFUL.

Defendant
first contends that law enforcement illegally entered her
home to effectuate her arrest, and thus, any evidence
obtained as a result of the arrest must be suppressed.
Specifically, defendant seeks suppression of the test results
for the alcohol content of her blood, her field sobriety test
results, and any statements made to the Menominee Tribal
Police or the FBI, as well as any derivative evidence. I
conclude, however, that the arrest of the defendant by
Menominee Tribal Police Officer Vincent Grignon was not
illegal.

At the
evidentiary hearing held on the defendant's motion,
Officer Grignon testified that at approximately 11:00 p.m. on
August 29, 2015, he was requested to assist an investigation
of an automobile accident in Neopit, Wisconsin on the
Menominee Indian Reservation. Upon his arrival, Officer
Grignon noted that a vehicle had crashed into a tree. The
vehicle was badly damaged, but was unoccupied at the time.
The registration of the vehicle came back to the defendant,
and several witnesses at the scene had told other officers
that she had fled the scene.

Officer
Grignon had known the defendant since they were in high
school together. He also knew where she lived. He proceeded
to that location in his squad car and arrived shortly
thereafter. He observed that there were people in the back
yard, sitting around a fire. Officer Grignon asked if the
defendant was present and was told that she had left a couple
of hours earlier. He asked if she was in the house and was
told by an individual who was later identified as Christopher
Kitchenakow that she was not. Officer Grignon then asked if
he could go inside to look for himself. Christopher
consented, but when Officer Grignon asked if he had authority
to consent, Christopher admitted that he did not. Christopher
stated, however, that the defendant's father was inside
and that he did have such authority. Officer Grignon then
knocked on the door and was invited to enter by the
defendant's father. The defendant was not there.

In the
meantime, the dispatcher for the Menominee Tribal Police
advised Officer Grignon that there were active warrants on
Christopher Kitchenakow. Officer Grignon took Christopher
into custody and transported him to the Menominee Tribal
Police Department. He was then directed back to the scene at
which time he was informed that one of the occupants of the
vehicle had died and others were seriously injured. When he
arrived back at the scene, he observed a woman down the
street screaming that the defendant was running down the
alley. Officer Grignon proceeded to the location of the woman
and she stated that the defendant was running down River
Street. Officer Grignon gave chase and followed the defendant
back to her home. An occupant of the home across the street
pointed to her home and indicated that she had entered just
before Officer Grignon arrived. Officer Grignon then
proceeded to the back of the house again, knocked on the
door, and heard the defendant respond. When she opened the
door, Officer Grignon instructed her to exit the residence.
She did not comply and he reached in, grabbed her arm and
pulled her out. At that point, he

Page 1066

advised her she was being detained and placed restraints on
her wrists. She was then transported to Shawano Medical
Center where she failed the sobriety tests and consented to
the withdrawal of a sample of her blood for testing.
According to the government, the test showed an alcohol
content of .154 %. Gov't. Resp. to Mot. to Suppress (ECF
No. 12) at 4.

Officer
Grignon testified that he did not step into the house when he
grabbed the defendant; he simply reached in and pulled her
out. He further stated that she was within one step of the
entrance. Further, he testified that he did not want her to
retreat into the home because there were other individuals
there and that on his earlier entry he had seen alcohol. In
his experience, it is not uncommon for someone who is
suspected of driving under the influence, if given the
chance, to rapidly drink, or chug, additional alcoholic
beverages so as to make impossible an accurate determination
of their blood alcohol content at the time they were driving.
For all of these reasons, he concluded that taking custody of
the defendant when she appeared at the doorway was
reasonable.

Officer
Grignon was correct. Under the " hot pursuit"
exception to the search warrant requirement a law enforcement
officer may enter a home while in " hot pursuit" of
a suspect in order to protect the public or prevent the
destruction or loss of evidence of a crime. Warden v.
Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782
(1967); United States v. Santana, 427 U.S. 38, 96
S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, the
defendant was suspected of selling heroin to an undercover
police officer. Within minutes of the sale, other police
officers proceeded to the home and observed the defendant
standing in the doorway of the house where the delivery had
just occurred. The police pulled up to within 15 feet of the
defendant, got out of their van shouting " police"
and displaying their identification. As the officers
approached, the defendant retreated into the vestibule for
her house. The officers followed through the open door,
catching her in the vestibule. As she tried to pull away, a
bag she was holding tilted and two bundles of paper package
with white powder, later determine to be heroin, fell to the
floor. She was later arrested and charged with possession of
heroin with the intent to distribute. In upholding the arrest
and seizure of evidence the Court noted that the police were
justified in entering the home in hot pursuit of the
defendant and given the exigent circumstances. Exigent
circumstances existed because once the defendant saw the
police, there was a realistic expectation that any delay
would result in the destruction of evidence. Id. at
42-3.

The
same reasoning justifies the actions of Officer Grignon in
this case. The defendant had fled the scene of the fatal
accident approximately two hours and forty minutes earlier.
It was reasonable to believe she had been hiding and running
from the police since that time. She entered the house only
minutes before Officer Grignon arrived. If he had not
immediately taken the defendant into custody at the doorway,
Officer Grignon risked the possibility that the defendant
would flee into the house and delay even further the
opportunity to obtain a sample of her blood so that it could
be tested for its alcohol content. Officer Grignon noted that
he was aware from his training and experience that alcohol
metabolizes in the blood and the longer the delay between the
drinking and the driving, the more difficult it would be to
prove that she was intoxicated at the time of the crash.
Officer Grignon also noted the additional risk that if not
immediately taken into custody, the defendant would be able
to consume additional alcoholic beverages that were
accessible

Page 1067

to her in the house so as to make impossible the
determination of what her blood alcohol content was at the
time she was driving.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Under
these circumstances, the limited entry required in order for
Officer Grignon to take the defendant into custody was
reasonable. It is important to note that other than reaching
across the threshold, Officer Grignon did not enter the
defendant&#39;s home; he simply reached in and pulled the
defendant out onto the porch. The defendant suggests that
because the arrest occurred at the back door, the invasion of
the defendant had a greater privacy interest than if Officer
Grignon had gone to the front door. But Officer Grignon
explained that the back door was commonly used as the
entrance to the home for guests, and the defendant offered no
evidence that visitors were not welcome to come to the back
door in order to summon one of the occupants. Finally, it
should also be noted that police were investigating a
homicide. This was not a mere driving while intoxicated
offense. Cf.Welsh v. Wisconsin, 466 U.S.
740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (holding that
warrantless " hot pursuit" entry into home to
arrest occupant for driving under the influence ...

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